Posted on August 12, 2009 by Eric S. Solotoff

THE ABUSE AND MISUSE OF THE DOMESTIC VIOLENCE STATUTE

A typical question that I hear at most initial consultations (and I suspect most other divorce attorneys hear the same question) , is "how do I get my spouse out of the house?"  The typical answer is that unless there is a new act of domestic violence, you cannot usually have a spouse removed from the house while the case is pending.

While in a perfect world, attorneys are not telling their client's to get restraining orders that are not legitimate, that seems naive.  Similarly, I am sure that badly motivated litigants, when hearing that a restraining order is necessary to get rid of their spouse, will do whatever it takes to get that restraining order, including provoking altercations and/or fabricating an incident.  I have, unfortunately seen or heard of this many times.  In fact, I often advise people to have a recorder with them at all times to protect themselves from a set-up.  In a recent case, the wife told the husband that she would no anything she could to get him out of the house.  I have unfortunately heard this a lot.  Aside from the obvious reason to get rid of a spouse, the other reason is that with the entry of a final restraining order comes a rebuttable presumption that the victim should get custody of the children.  Also, there is the practical advantage of gaining possession of the home and temporary custody of the children by virtue of a restraining order. 

Don't get me wrong.  Domestic violence, real domestic violence is a blight on our society and is in no way acceptable.  That is not what I am talking about.  I am talking about, at best, what the Appellate Division has called "domestic contretemps" (i.e. your garden variety argument) and at worst the set-up noted above. 

Because domestic violence is so serious, it is an affront to the system and real victims when it is abused.  A few quotes from Appellate cases really get to this point. 

In the Peranio case,  Judge, now Justice Long criticized application of the domestic violence statute to a minor disagreement when she stated:

Although it can safely be observed that defendant’s conduct was no model, application of the domestic violence law to it diminishes the suffering of true victims of domestic violence and misused the legislative vehicle which was developed to protect them. It also had a secondary negative effect: the potential for unfair advantage to a matrimonial litigant.

Justice Long also quoted from the Appellate Division opinion in Murray, as follows:

We are concerned, too, with the serious policy implications of permitting allegations of this nature to be branded as domestic violence and used by either spouse to secure rulings on critical issues such as support, exclusion from marital residence and property disposition, particularly when aware that a matrimonial action is pending or about to begin.

Justice Long then ultimately concluded:

While we are sympathetic with plaintiff’s desire to shield her children from the bickering which took place between her and defendant during his visits (this was plainly one of the factors which fueled the filing of the domestic violence complaint), the fact of the matter is that the dissolution of a marriage is rarely a happy event. All parties suffer and even the most rational are hard pressed to avoid any emotional encounters. Our hope, like plaintiff’s, is that all children of divorce can be spared arguments and recriminations. But this needs to come from the good intentions of their parents and not from the misapplication of the domestic violence law, which law was intended to address matters of consequence, not ordinary domestic contretemps such as this.

At the end of the day, the domestic violence statute is an important and necessary tool to protect victims of domestic violence.  That said, it should be real victims and not maliciously motivated litigants seeking to get a leg up in their divorce or custody proceedings.
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Posted on January 31, 2009 by Sandra C. Fava

RETURN OF WEAPONS WHEN AN FINAL RESTRAINING ORDER IS ENTERED

In a recent unpublished decision from the Appellate Division, McAteer v. Guzenski, Docket No. A-1540-07T3, decided January 21, 2009, the Court held that N.J.S.A. 2C:25-29(b)(16) dictates that when an individual is found to have committed an act of domestic violence, a court may also issue an order prohibiting that individual from possessing any other weapon.

When domestic violence arises in a situation that is protected under the Prevention Against Domestic Violence Act, (i.e. marriage, dating relationship, living together, etc.) individuals will disclose what weapons he/she believes or knows the aggressor to have in their possession.  Thereafter, when the Temporary Restraining Orders ("TRO")  is served, a person's weapons are seized by the police department.  More often than not, when the Final Restraining Orders ("FRO") is entered, a judge will include a provision prohibiting the aggressor from retaining possession of those weapons listed.   If the TRO is  turned into an FRO , thus making the restraints permanent, the sheriff's department or local police authority will retain possession of these items.  At some point, they may even be auctioned for sale.

In this recent unpublished decision, the parties dated for approximately three weeks.  At the end of these three weeks, plaintiff advised defendant that she wanted to end the relationship.  Unsatisfied with her notification, defendant began engaging in acts which the trial court found to be harassment and which raised to the level that required the entry of an FRO.  These acts included telephoning the plaintiff's grandmother and threatening to call DYFS on plaintiff (consequently DYFS appeared the next day, however it was never proven that defendant did in fact make the call), calling and text messaging plaintiff at inconvenient hours, calling plaintiff names, and posting a message about plaintiff on his MySpace web page.  After a trial in this matter, where both parties were represented by counsel and the court heard testimony not only of the parties but of their witnesses as well, it was determined that defendant did in fact commit an act of domestic violence and that his actions warranted the protections of an FRO.  Inclusive in the issuance of the FRO, the court advised defendant that he was prohibited from possessing firearms and other weapons and that because there was a finding of domestic violence, there was an automatic prohibition against owning any firearms or other weapons.  The weapons involved in this case included martial arts weapons, i.e. a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives and nunchucks. 

Defendant testified that he never threatened to hurt or harm the plaintiff and that he only used these weapons when practicing marital arts.  Nonetheless, the court ordered a prohibition against defendant carrying or owning these weapons as a result of the entry of the FRO.

Defendant appealed the trial court's decision. His appeal was based on two arguments: 1) The casual and short term relationship between the parties didn't qualify as a "dating relationship" under the Domestic Violence Prevention Act; and 2) the trial court erred in holding that the entry of an FRO made automatic the seizure of defendant's weapons.

Defendant's first argument failed because he did not raise the argument to the trial court, thus the Appellate Division could not consider it since it was missing from the record below. As to the second argument, the Court agreed and reversed and remanded that portion of the trial court's decision.

"N.J.S.A. 2C:25-29(b)(16) provides that in addition to entering an order prohibiting a defendant found to have committed an act of domestic violence from possessing a firearm, a "court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.A. 2C:39-1." (emphasis added). Id. at page 10. The key language in this part of the statute is "may", which leaves the determination up to each judge, on a case by case basis. Moreover, although martial arts weapons are not specifically identified as weapons under the statute, the Appellate Division was satisfied that martial arts equipment is included, as the definition of a weapon includes "anything readily capable of lethal use or of inflicting serious bodily injury."

The court remanded the issue of whether defendant's martial arts weapons should be seized to the trial court to make findings whether defendant's continued possession of these items would pose a threat to plaintiff or others.
 
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